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James Buckley urges Congress to stay out of state affairs

George F. Will
on May 2, 2019

WASHINGTON -- At 96, James Buckley still is, like good cheddar, sharp and savory. Buckley, whose life has been no less accomplished than his brother Bill's, recently said at a National Review gathering that his speech there would be his last public appearance. Let us hope not.

He adorned all the government's branches -- senator; undersecretary of state for international security affairs; judge on the nation's second-most important court, the U.S. Court of Appeals for the D.C. Circuit. Shortly after his 1970 election to the Senate (as a member of New York's Conservative Party; the age of miracles had not yet passed) he was handed a recent study showing that "the work of the average congressional office had doubled every five years since 1936." He explains:

"Given the fact that, in simpler times, Congress worked at a leisurely pace and was in session for only five or six months a year, its members could take the initial increases in stride simply by devoting more hours per day and more months per year to their work. Over time, however, the available hours and months had been exhausted, and the doubling could only be accommodated by squeezing deliberation out of the legislative process."

In 1934, after 145 years of congressional activity, the U.S. Code consisted of one volume of federal statutes. Buckley says when he came to Congress 36 years later, there were 11 volumes. Today, 49 more years on, there are 41 volumes -- supplemented by 242 volumes of regulations having the force of law. This, says Buckley, is the result of a Congress "that largely substitutes political reflex for reflection," and that is so averse to "messy details" that it delegates "essentially legislative authority to executive agencies." All this stems, however, from "abandonment of the Constitution's limits on federal authority."

Buckley says that the mischief erupted after a 1937 Supreme Court ruling that Congress, in promoting the "general welfare," can supply states with money to implement programs that Congress has no enumerated power to write into law. When Buckley entered the Senate, such programs distributed $24 billion. Today, he says, the sum, properly computed, is in "mid-$700 billions." The idea of enumerated powers having been erased, so has the 10th Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.").

Buckley has hitherto proposed converting all such programs into block grants to states. He now proposes a presidential tweet vowing to veto "any bill that tells the states how to run their own affairs." He proposes, and believes "there is a chance," that the Supreme Court might reverse its 1937 ruling on the ground that federal grants to states "have proven to be inherently coercive." These proposals are equally sensible, and -- the age of miracles has now passed -- equally unlikely.

The problem, as Yuval Levin says, is Congress' "willful underactivity." But the growing problem that will continue to exacerbate this problem is this: Having marginalized itself, with judicial encouragement, Congress now attracts members who either disdain it or think members of the president's party exist to tug their forelock when the president issues orders.

Sen. Kamala Harris, D-Calif., who has been campaigning to escape from the Senate into the White House since arriving there 28 months ago, considers the legislative branch a constitutional superfluity: "Upon being elected, I will give the United States Congress 100 days to get their [sic] act together and have the courage to pass reasonable gun-safety laws, and if they fail to do it, then I will take executive action." The 100 days are granted by the grace of Queen Kamala I. In January, Sen. Richard Burr, R-N.C., explained why Republicans would not consider a bill funding the government without money for a border wall: "The president won't sign it. Why would we work on it?" Perhaps because there is value in Congress expressing its independent view of the public good?

An omnipresent, micromanaging federal government will necessarily be presidential government, with the chief executive's discretion unbound, and unsupervised by a Congress that manages to be both harried and lethargic. Many progressives have long understood this -- and have approved of it because they thought Woodrow Wilson and the two Roosevelts would be the sort of presidents who would benefit from it. But because of the 45th president, progressives are having second thoughts. They should consider Buckley's thoughts.

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George Will's email address is georgewill@washpost.com.

(c) 2019, Washington Post Writers Group

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